A New Category of Expert Evidence: Litigant’s Employee with Expertise

Two Divisional Court decisions related to billing under the Ontario Health Insurance Plan (“OHIP”) provide insight into the consideration of expert evidence by administrative tribunals governed by the Statutory Powers and Procedure Act (“SPPA”), specifically, expert evidence from a “litigant’s employee with expertise.”

Wilkin v. Health Services Appeal and Review Board

The first case, Wilkin v. Health Services Appeal and Review Board,[1] involved an orthopedic surgeon, Dr. Wilkin, who treated a patient who had suffered multiple fractures after a serious fall. OHIP denied some of the claims submitted to OHIP in relation to this treatment. Dr. Wilkin appealed OHIP’s decision to the Health Services Appeal and Review Board (“HSARB”).

Before HSARB, OHIP presented evidence from Dr. Davidson, an orthopedic surgeon and medical advisor for OHIP. Dr. Wilkins objected to some of the evidence provided by Dr. Davidson. Dr. Wilkins did not dispute Dr. Davidson providing factual evidence about the context, the process of claims analysis and settlement, and the decision to deny some of Dr. Wilkins’ claims for payment under the Schedule of Benefits. However, Dr. Wilkins objected to Dr. Davidson providing opinion evidence about whether or not specific codes were payable for the services provided by Dr. Wilkin, and opinion evidence about the legislature’s intent in relation to specific fees under the Schedule of Benefits for Physician Services.

HSARB ruled that it would hear the disputed opinion evidence from Dr. Davidson. HSARB concluded that Dr. Davidson’s role was akin to the role of a “participant expert,” a category of expert evidence on civil matters established by Westerhof v. Gee Estate.[2] This category applies to non-parties who participated in events underlying the claims (for reasons unrelated to the litigation), and who happen to have expertise and information relevant to the issues in dispute in the litigation.

The Divisional Court upheld HSARB’s decision to admit Dr. Davidson’s evidence. The court noted that HSARB had broad discretion to consider expert evidence under the SPPA, broader than admissibility in civil court matters. While administrative tribunals are not bound by principles applicable to the admissibility of expert evidence in civil matters (as set out in R. v. Mohan[3]), they remain relevant to the admission of expert evidence by statutory tribunals.

The Divisional Court agreed with Dr. Wilkin that Dr. Davidson was not properly characterized as a “participant expert.” However, the court noted that Westerhof had identified that a broader group of witnesses with expertise may testify in civil claims even though this group would not meet the usual criteria for independent experts retained by a party. This broader group included, but was not limited to, participant experts. The Divisional Court found that Dr. Davidson fell within another category of expert witness, a “litigant’s employee with expertise,” relying on a 2015 case from the Alberta Court of Appeal that had recognized this category. This case was the first time that this category of expert was adopted by an Ontario court.

Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health)

The second case, Dixie X-Ray Associates Ltd. v Ontario,[4] involved five clinics (owned by Dixie X-Ray Associates Ltd, or “Dixie”) providing diagnostic imaging services. The Ministry of Health (the “Ministry”) found that a number of claims made by Dixie clinics for diagnostic ultrasounds did not meet the eligibility criteria, and sought repayment from Dixie in the amount of approximately $1.1 million. The disputed fee codes related to Dixie billing the following fee codes related to ultrasounds of extremities (limbs):

• Code J182: extremities [limb] ultrasound, “excluding vascular study”: see Schedule, under “Miscellaneous” subheading; and
• Code J193: peripheral [blood] vessel assessment (a type of vascular study), using a “doppler scan or B scan, unilateral”: see Schedule, under “Vascular Systems” subheading.

The Ministry conducted an audit of Dixie clinics, because it identified Dixie clinics as a statistical outlier, billing both of these codes on the same day for the same patient at a much higher frequency than other diagnostic clinics. After reviewing Dixie’s medical records, the Ministry identified concerns that the criteria for billing Code J193 (for a peripheral vessel assessment) were not met because (1) the patient records did not show documentation of a physician requesting a peripheral vessel assessment and (2) there were no images or reports to support that a separate peripheral vessel assessment was rendered. The Ministry sought a response from Dixie.

Dixie responded and explained that there was a standing order at Dixie to use Doppler technology to examine blood flow while completing an extremities ultrasound, to enhance images and assist in the diagnosis and evaluation of a number of conditions. OHIP found that the criteria for payment of an extremities assessment were not met, both because (1) there was no documentation of a physician request for a peripheral assessment, and (2) OHIP did not feel that adding Doppler to an extremities ultrasound to assess blood flow qualified as a peripheral vessel assessment as contemplated by J193.

Dixie appealed to HSARB, and presented evidence from three radiologists. One was one of the owners of Dixie, the other two were qualified as independent expert witnesses. The only witness that the Ministry called was a Medical Advisor who worked for the Ministry. The Medical Advisor was a former family physician, but not a radiologist.

Dixie’s witnesses gave evidence that there was a standing order from Dixie’s radiologists to add Doppler to each extremities ultrasound. This standing order was implemented because Dixie’s radiologists believed this to be medically necessary in every case, as it provides valuable clinical information about the patient’s condition beyond what a non-Doppler ultrasound provides.

HSARB decided to uphold the Ministry’s decision, relying on the evidence of the Ministry’s Medical Advisor. To support its conclusions, HSARB relied on the testimony of the Medical Advisor. HSARB found that the Medical Advisor was permitted to provide opinion evidence as a “litigant’s employee with expertise”, relying on the 2015 decision of the Alberta Court of Appeal and on Wilkins, which had been released four months after the Board hearing. The Board did not first notify the parties that it would be considering the concept of a “litigant’s employee with expertise” or the related case law.

On appeal to the Divisional Court, the Divisional Court found that HSARB breached procedural fairness by failing to notify the parties of its intention to apply the concept of “litigant’s employee with expertise” and provide the parties with an opportunity to give submissions. The Divisional Court decided to send the matter back to HSARB on that basis.

The Divisional Court also noted that it had some concerns with respect to the scope of expert evidence HSARB seemed to have relied upon. HSARB found that the Medical Advisor was an employee with expertise in the interpretation and application of fee codes in the Schedule of Facility Fees. The Divisional Court agreed that these were areas within the Medical Advisor’s expertise. However, the Divisional Court noted that HSARB seemed to have also relied on the Medical Consultant’s opinion in areas that strayed beyond this expertise, addressing for example the circumstances in which a particular procedure may be medically necessary, noting the Medical Consultant’s experience as a family doctor for many years.

Conclusion

While both cases demonstrate that SPPA tribunals have broad discretion to admit and consider expert evidence, Dixie shows that there are limits on this discretion, both procedural and substantive.

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